In deciding last week that the ITC was wrong to reject a satellite operator’s acquisition of the listed away matches of the Danish football team in the World Cup, the Court of Appeal has drawn attention to the clear fault lines in the whole listings concept.
The case arose because the Danish public broadcaster lost a perfectly fair auction for the rights in question to TV Danmark, a satellite broadcaster with much more limited coverage, but then continued to maintain an interest in acquiring the rights. For the ITC, TV Danmark’s limited coverage, compared to the public broadcaster, meant that the goal of maximum access laid down in the Television Without Frontiers Directive would be thwarted if TV Danmark was allowed the fruits of victory.
The Court of Appeal roundly dismissed this argument. The court rightly pointed out that the goal of maximum access was not to be pursued at any cost. The Directive after all refers to the (conflicting) goals of free movement of services, undistorted competition and non-interference with property rights. For the court, all these goals would be compromised if a public broadcaster were allowed to trump a perfectly valid winning bid at a higher level than its original bid.
The case is interesting for a number of reasons. Firstly, it demonstrates that, as with most laws which distort markets, success requires that the system be internationally watertight. Such an outcome cannot be guaranteed if the courts which adjudicate on disputes with an international element come at them from different angles. Secondly, from a legal perspective, the case shows the court skilfully using euro-legal reasoning, such as references to the concept of “undistorted competition”, rather than classic English legal tools to reach a politically rather incorrect judgment.
Most importantly for broadcasters, the case suggests that so long as the judgment remains good law and so long as member states do not have the nerve to invite European Human Rights Convention attack by specifically allowing compulsory purchase by public broadcasters, satellite broadcasters will enjoy the upper hand in acquiring some sports rights. This outcome is unlikely to go down well with an electorate weaned on maximum access that is free at the point of delivery, so expect frantic political manoeuvrings to override the judgment in the months ahead.